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António Manuel Hespanha * , The everlasting return of orality . Orality was a distinctive feature of popular law (ius rusticorum) in the Middle and Early Modern Ages. With it an array of intellectual and technical points were conveyed to legal discourse and even to legal strategies and practices – different norms, different ways of argumentation, different relations between law and neighboring normative fields, different concepts of justice. Notwithstanding the fact that writing was becoming progressively the common interface of the legal world, orality went on influencing legal practices at the peripheries, supporting alternative narratives of life. Or even the legal conceptions of the center. In the nineteenth century, the criticism against a written constitution or codification, or the attention paid to forensic or parliamentary rhetoric, were symptoms of a reaction to the written word / world which never abandoned Western culture. The same seems to occur today, “when law goes pop”. In our days, however, the reaction against the imperial discourse of written law is becoming not narratives made from spoken words, but also images in frenetic motion and juxtaposition. In this kinetic world, variety and shallowness become distinctive features of life perception, with which a new discourse on law must cope or against which it must react 1 . * Ordinary Professor, Law Faculty, Universidade Nova de Lisboa Published in Dag Michalsen (ed.), Reading past legal texts, Oslo, Unipax, 2006, 25-56; Portuguese version in Sequência. Revista do Curso de Pós-Graduação em Direito da UFSC, Santa Catarina (Brasil), 25(2005, )47-107. 1 This article is partially made of youth recollections from my father’s notary office; it means also a homage to him and to his perhaps naïf intentions of bringing fairness through the enforcement of learned law. António M. Rodrigues Hespanha was born in 1913 (Avanca, Aveiro) and attended Coimbra’s Law School from 1929 to 1934; after a short and unsuccessful beginning as lawyer, he was nominated (1941) to a post of notary, in a pretty small village, S. Lourenço do Bairro, in the neighborhood of the rural mansion of António Luiz de Seabra, the author of the first Portuguese Civil Code (1867), at Mogofores, where a Seabra’s bust, in a small garden facing his sober manor, remembers the local hero. Later (1950), he obtained a post in a neighboring but larger county (Oliveira do Bairro, where he lasted for more than 25 years. However, every evening, returning home from school, me, and my younger brother, all embarked in an old and tricky Citroen, we –used to cross the village being often told by our father about Seabra’s legal achievement. In 1975, my father finally moved to Lisbon. He went on doing his job in a hard and pointillist way, having gained the ambiguous fame of one of the most demanding notaries of the capital: “If it passed through Hespanha’s office, there will be no chance of canceling the deed”, I heard once. It was surely a matter of a stubborn character; but it was also a deep sense of the need of legal formalities, procedures and reasoning – in a word, of legal discipline – to get an ordered society. And, in a way, Lisbons’s harsh “jungle” needed more discipline than the peaceable and docile rural world of Oliveira do Bairro. After a quite melancholic retirement, my father died in 1999.

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Page 1: António Manuel Hespanha , The everlasting return of orality · António Manuel Hespanha ∗, The everlasting return of orality . Orality was a distinctive feature of popular law

António Manuel Hespanha ∗, The everlasting return of orality �. Orality was a distinctive feature of popular law (ius rusticorum) in the

Middle and Early Modern Ages. With it an array of intellectual and technical points were conveyed to legal discourse and even to legal strategies and practices – different norms, different ways of argumentation, different relations between law and neighboring normative fields, different concepts of justice.

Notwithstanding the fact that writing was becoming progressively the common interface of the legal world, orality went on influencing legal practices at the peripheries, supporting alternative narratives of life. Or even the legal conceptions of the center. In the nineteenth century, the criticism against a written constitution or codification, or the attention paid to forensic or parliamentary rhetoric, were symptoms of a reaction to the written word / world which never abandoned Western culture.

The same seems to occur today, “when law goes pop”. In our days, however, the reaction against the imperial discourse of written law is becoming not narratives made from spoken words, but also images in frenetic motion and juxtaposition. In this kinetic world, variety and shallowness become distinctive features of life perception, with which a new discourse on law must cope or against which it must react 1.

∗ Ordinary Professor, Law Faculty, Universidade Nova de Lisboa � Published in Dag Michalsen (ed.), Reading past legal texts, Oslo, Unipax, 2006, 25-56; Portuguese version in

Sequência. Revista do Curso de Pós-Graduação em Direito da UFSC, Santa Catarina (Brasil), 25(2005, )47-107. 1 This article is partially made of youth recollections from my father’s notary office;

it means also a homage to him and to his perhaps naïf intentions of bringing fairness through the enforcement of learned law. António M. Rodrigues Hespanha was born in 1913 (Avanca, Aveiro) and attended Coimbra’s Law School from 1929 to 1934; after a short and unsuccessful beginning as lawyer, he was nominated (1941) to a post of notary, in a pretty small village, S. Lourenço do Bairro, in the neighborhood of the rural mansion of António Luiz de Seabra, the author of the first Portuguese Civil Code (1867), at Mogofores, where a Seabra’s bust, in a small garden facing his sober manor, remembers the local hero. Later (1950), he obtained a post in a neighboring but larger county (Oliveira do Bairro, where he lasted for more than 25 years. However, every evening, returning home from school, me, and my younger brother, all embarked in an old and tricky Citroen, we –used to cross the village being often told by our father about Seabra’s legal achievement. In 1975, my father finally moved to Lisbon. He went on doing his job in a hard and pointillist way, having gained the ambiguous fame of one of the most demanding notaries of the capital: “If it passed through Hespanha’s office, there will be no chance of canceling the deed”, I heard once. It was surely a matter of a stubborn character; but it was also a deep sense of the need of legal formalities, procedures and reasoning – in a word, of legal discipline – to get an ordered society. And, in a way, Lisbons’s harsh “jungle” needed more discipline than the peaceable and docile rural world of Oliveira do Bairro. After a quite melancholic retirement, my father died in 1999.

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From orality to writing.

Almost twenty years ago, I touched for the first time on the issue of orality and writing in law.

Working on popular judiciary in the Early Modern period, I found myself in a paradoxical situation. Empirical sources told me that the overwhelming world of local courts was in the hands of illiterate judges, elected by the local elites. In smaller boroughs, there was enough evidence to indicate that most of the judges were entirely illiterate. At their sides stood scribes and notaries, whose writing capacities were stronger, even in legal matters. Before being put in charge (by royal decree), they had to perform a writing examination; further evidence 2 showed that they were often failed law students. Popular courts belonged therefore to the world of orality, or at least to that world which is called scribal orality 3.

Nevertheless, the scanning of the doctrine of ius commune as related to judges and courts produced meager results by which to visualize this world. Judges were deemed to hold a full reading and writing competence and, furthermore, to be learned in the highly sophisticated knowledge of Roman and Canon Law (both written in Latin). Royal statutes also supposed a learned level of literacy on the part of judges, in both these kinds of law.

Inasmuch as traditional legal history selected legal and/or doctrinal sources as canonical sources, the silence of learned legal literary tradition endorsed a full ignorance – or even an clear contempt – of this “low level” of legal “practice”.

2 Joana Estorninho, “A forja em que se apuram os homens”. Os estudos jurídicos como acesso a grupos sociais de poder no Antigo Regime (sec. XVII) (in press).

3 Martin S. Jaffee, Torah in the Mouth. Writing and Oral Tradition in Palestinian Judaism 200 BCE-400 CE, Oxford, Oxford University Press, 2001, defines scribal orality as an “oral-performative literary tradition [...] rooted in the work of scribal professionals who, if they were not employed in Temple administration, would normally have received a training similar to those who were [...] Where it extended beyond scribal communities, literary culture was mediated primarily through the official Temple cultic system or unofficial, occasional public functions perhaps associated with ritualized readings of classic texts in the emerging institution of the synagogue. In this culture, the very definition of “reading” included the oral pronouncement of the text in public audition—its oral-performative tradition [...]. In spite of the authoritative and authoritarian nature of the text which was orally performed [...] the malleability that its oral life conferred upon the written text—in its various performative renderings, its expansions and contractions in diverse copies—went all but unnoticed. The book’s authenticity was guaranteed by the image of its oral delivery to the first scribe, and this authenticity of origins enabled the text to accommodate a remarkable fluidity in the course of its manuscript transmission and performative history. The book was the message heard, grasped as the restoration to speech of the original message. That its meaning depended upon an ongoing text-interpretive tradition of orally mediated reinscription and renewed exposition went, it seems, virtually unnoticed” (“Conclusions”)

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Recollections from my youth. Eventually I discovered that legal doctrine was not so silent about popular justice. I

saw that it appeared (downgraded both in its social impact and cultural substance) in tiny references or short and marginal chapters on “rustic law” (iura rusticorum). Further research led me to a few treatises dedicated to peasant practices of law 4, revealing astonishing similarities with legal phenomena with which I was acquainted.

Actually, as a child of a village notary I had youth recollections of this world of entangled oral, scribal and learned legal narratives. Illiterate people explaining to my father what they wanted to do – excruciating sales of small family estates; intricate inter vivos dispositions of patrimony in favor of their children as a hazardous warrant for a safer old age, as well as ways of distributing family inheritance under the impact of a still existing authoritative parental will; or mistrusted land mortgaging. My father tried to convey their interests, desires, fears and anguish in the formal language of learned law, or to reconcile their misgivings within the limitations of Civil code. Senhor Arménio, my father’s wise and dedicated clerk, also intervened in the efforts of translating swirling states of spirit to the fixed (immobile) texts. He wrote down, according to my father’s guidelines, the results of this risky, socially embedded intellectual operation. The reading of the text was the final step; it had to be slowly and loudly explained by my father to all the other participants, whose agreement was formally requested before their signature (or fingerprint) was put into the highly impressive red, bound register book. This was the crucial moment, when the dual sided translation was evaluated. In spite all the previous inquiry on the respective will of the contracting parties, it was not rare that fierce arguments arose among them, now that everyone had been instructed on the practical meaning of the words read in a formal, technical and uninterrupted way by Senhor Arménio. When spirits became too high, my father imposed silence, sometimes expelling them from the office. The arguments sometimes roared on into the street, with Senhor Armenio attending calmly, the red book open, until the spirits came down enough for him to finally collect signatures and fingerprints. That was why my younger brother and I always anxiously expected this dramatic moment as an exciting pause in the normally tedious afternoon waiting to come back home.

This legal translating office had its own particular features with an entire set of rituals. In reality, it functioned as an outpost on a border, a cultural border. In a way, it was like an institutional manifesto of legal writing yelled in a world where literacy was scarce. The outer aspect of the building itself was not impressive – two wide, red-brown doors (one of them them always closed) in the ground floor of a plain, grey-white façade. Once in, a large mahogany counter separated the lay attendants from the “clerical” world. Outside the counter were two uncomfortable wooden benches where a handicapped man who served as a “default witness” could invariably be found seated. In his tender childhood, an accident – a pig’s bite, someone said - had deprived him of both hands. Nevertheless, he could ride a bike and, above all, could write a neat signature, complete with flourishes. Years

4 António Manuel Hespanha, "Savants et rustiques. La violence douce de la raison juridique", Ius commune, Frankfurt/Main, 10(1983) 1-48

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and years of attendance there made him recognized by everyone, so that he could testify as to the identity of whomever came in. In this way, he became another piece of this broker system between two worlds, each one with specific models of ascertaining truth.

Beyond the counter lay another world: wooden shelves twisting under the weight of red-brown books and faded files tied with grey strips, and drawers full of handwritten cards that allowed one to find a particular document in a book or in a file. Other smaller drawers enshrined a huge collection of signatures, theoretically allowing for the certification of the authenticity of those found in documents present in the notary’s office 5. The two calfskin-covered desks were full of rubber stamps, as well as an official metal seal, locked for security. My father’s office space was constructed of a medium-height wooden frame and a glass screen, painted in white. There were his law books, some in highly disordered shelves, others in a rotating display at arm’s length from his desk. Omnipresent red books, files, stacks of papers and forms, a pair of chairs and an iron strongbox completed the scene. From here, he could hear or perceive everything occurring on the office; however, he could also keep the secrecy of his magical laboring with paramount texts, his intimacy with scholarly books or official journals. All of this was a learned routine quite enigmatic even to his clerks, whose access to this level of source texts was limited to formularies and accounting regulations.

This world of entangled communication struck me greatly. All these people spoke the same language. We were all neighbors, or almost. Some of them could be my own classmates’ fathers. Also, my father – in spite of his law degree at the neighboring Coimbra University – belonged to this world of small or medium landowners, of their pine groves, vineyards or tiny meadows. Like them, he understood what a strip of family land meant; how difficult it could be to divide bits of land (though each with a singular name, history and qualities) among several children, some of them boys and some other girls; how risky it was to give one’s land in mortgage, not to a neighbor, but to an outside lender. It was why he could translate peasants’ life strategies and explain legal results to them. Even when dictating he sought to use a hybrid style, repeating the words tautologically with a slight variation in meaning, trying to cope with both technical and common sense language and avoiding, by juxtaposing words, any ambiguity in interpretation.

However, I perceived barriers, misunderstanding, strangeness and even hostility in this apparently neutral and merely bureaucratic ambiance. At the same time, I experienced my father’s power, even when he explained in a gentle and somewhat paternalistic tone what was at stake. Not because he was a State officer; but because of his knowledge, because of his legal studies (he was Senhor Doutor, not simply Senhor Hespanha), because of his familiarity with books, because of his fluent writing and his fluent dictation to Senhor Arménio.

5 My father has always been extremely proud of the accuracy of this rudimentary system, devoting a constant

attention to what seemed to me a useless tool. Until I discovered the symbolic (to the exterior) and disciplinant (to the interior) efficiency of this reconhecimento de assinaturas mechanism. Actually, it embodied the everlasting legal pretension of consuming reality (quod non in libris (actis), non est in mundo); in this case, who wasn’t in the cards, was not in the world (a theme which José Saramago’s novel, Todos os nomes, 1997, will brightly develop). Towards clerks, the signature’s musters recording was a proof of care and rigour, and also a sacramental act bringing people to being (a baptism).

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Now I can understand what was going on there. And what was going in Oliveira do Bairro in the Fifties and the Sixties of the twentieth century was not so far from what had been going on overall Western Europe (not to mention overseas) when an elite of legal literati was able to impose its presence within an oral culture.

From their boroughs and villages peasants brought interests 6, embedded in strategies of life, grounded in cultural values. Their narratives – what they told my father – were therefore discourse-vested pieces of their lives. Discursive dresses were already hybrid garments, where old traditional (common sense) juridical narratives – relating to lost pieces of traditional peasant ethos and law, like primogeniture, familial ownership, proof by mere tradition, filial piety, loan as charitable act, exchange of services, etc. – were combined with more recent Statist topoi – like the need for written proof, egalitarian division of inheritance, dismissal of family limitations on free disposition of property, dissolution of filial sense of duties towards parents, taxation on land transmission, cadastre and registry. Otherwise, they would never come; or, better, yet more would not come 7. In other words, they had learned – in more or less recent times - that their own native narratives were not enough to safeguard their expectations for the future or even for a time when they would not be alive any more. They learned that, to assure their interests, they had to come to terms with State authority and official law, personified, for the moment, in the notary. If they were incapable of translating by themselves their aims in terms of official law and procedures, they were at least (forcibly and within limits...) disposed to allow the notary do so for them. Apart from the fact that they personally trusted the notary (which could certainly be the case, due to their neighborly acquaintance with him, and with shared ways of life), they feared his ability to handle “books of power” (performative books, we would say) – from the red-brown, bound ones where the clerk wrote (and they eventually signed) to the printed ones that Senhor Doutor preserved in his wooden cage and used to solve hard cases. These were books that either preserved the present for the future or anticipated the future of a present issue.

My father, for his part, mastered a series of standard narratives with which he tried to cope with what he understood to be the attendant issue. Due to his acquaintance with this peasant world to which he himself also partially pertained, he could understand the “savage mind” and, on the other hand, also believed it was his duty as lawyer and as public officer to “domesticate” it in terms of academic and State law. He belonged to this other world, as well, that of official

6 On the culturally embedded nature of “interests”, cf. Lorenzo Ornaghi, Interesse, Bologna, Il Mulino, 2000.

7 It is a known fact that – even in domains like land property alienation (by transaction or succession), which needs a public document and registry in cadastre – a great deal of transactions pass out of the notary’s office. Also, because it was there that the respective taxation process is triggered. Years later, in a quite different context, my brother (Pedro Hespanha, working on peasant studies and rural sociology: Com os pés na terra. Práticas fundiárias da população ruralportuguesa (Porto: Afrontamento, 1994)) found chains of land transaction, from the seventeenth century onwards, which were never formalised under the terms and procedures of official law.

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law. He was educated in a Faculty which was permeated (in the 1930’s) by a specific legal culture, a mix of academic conceptualism, inherited from the German conceptual jurisprudence of the early twentieth century, and of positivistic legalism, which sprang from a French tradition of exegetic (or annotative) jurisprudence. It was also reinforced by the authoritarianism of Salazar’s regime 8. As notary, his academic education was partially superseded by a bureaucratic training in the detailed State regulations concerning the notaries’ profession and registry, as incorporated in circulars 9 issuing forth from the Ministry of Justice. Although complex, his archive of narratives was limited and could not translate (domesticate) his clients’ agenda. It was not only that words didn’t correspond; that, for example, usufruto (life tenancy)10 or usucapião (acquisitive effects of possession [in the case, namely, of land])11 were unknown words. Nor that some of the native words had to be vested with formalities – first of all, to be written and registered by a notary. Rather, it was also that some of the intentions weren’t translatable at all in any of the available official narratives. It was impossible, for example, to find an appropriate narrative to translate the intention of selling a land whose ownership was not registered in favor of the vendor. Likewise it was impossible to inscribe in an official legal genre the story of a father who wanted to exclude a daughter from his succession because of a bad marriage; or who wished to exclude a son because of an act of serious disobedience or disrespect. There was, of course, a legal remedy, but this would entail a long judicial procedure (probably a further source of misunderstandings and emerging conflicting narratives) entirely out of sight of the parties. In these cases, my father’s translating abilities were very low. He couldn’t but “domesticate”, plainly refusing to transcribe this kind of history in the magic red-brown book.

Senhor Arménio also had a pivotal role to play. He was basically a cultural broker. His dependence upon my father’s readings rendered him prisoner of a given discourse which he could not change from its original source. But the fact that the daily writing routine, the legal narration of the concretely occurring cases, was his ordinary task, he was like the temple’s scribe who disseminates written knowledge without losing the opportunity of a limited interpolation, the price to be paid in order to build a flexible bridge between official narratives and the attendants’ ones.

It was in these moments that the regulatory role of the State appeared, as an instance of the distribution, definition and limitation of the power of telling stories or of composing social scripts for action. In the name of what ? In the name of the State law, the sole official narrative allowed even in private affairs. A

8 António Manuel Hespanha, "L'histoire juridique et les aspects politico-juridiques du droit (Portugal 1900-1950)", Quaderni fiorentini per la storia del pensiero giuridico, 10(1981), 423-454

9 Official instructions issued by specialized State departments, the Direcção-Geral dos Registos e Notariado.

10 An effect very commonly wanted in the case of a donatio inter vivos done by the parents in favour of the children.

11 A useful way of legitimate ownership in a society where formal deeds of land transfer tended to be singular.

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somewhat vague narrative (like liberal civil law) promises to give a broad space for individual shaping of transactions (according to the Willensprinzip). However, will is supposed not only to be free (also from legal ignorance) but also to be “rational” and conform to “public order”. So that “standard free will” becomes something as strange to the reasoning in everyday peasant life as official law itself. However, doctrinal law also exists along with state, bureaucratic law (consisting in formulae and routine practices) – and it imposes canonical narratives. In the face of this constellation of official narratives, alternate stories become nonsense, ignorance, even impossibility.

The decay of dialogue. My father’s limitation would not be so strict when the concept of iura

rusticorum was in force. Then official law acquiesced to acknowledge that peasants had some right to validate their storytelling before official law.

On the one hand, law had not yet received the status of a rational knowledge. It was rather a reasoned knowledge, which is a fully different thing. Rhetoric and enthymeme 12 prevailed over demonstration and syllogism. Decisionmaking was conceived as a grasping of disparate and probably biased or contradictory pieces of truth deposed in arguments 13.

On the other hand, peasants were deemed to have a somewhat childish nature. They shared with children innocence and unsophistication. It was true that they inclined toward goodness, but, perhaps precisely because of their pure inclination to a natural order (already lost or at risk of loss), they could not understand the artificiality of humanmade, strict law. Therefore, there existed a wide set of prudent rules allowing for the handling of peasants’ matters and disputes according to their ritual or narrative stereotypes14.

Most of both ideas change dramatically with the dawn of modernity. Walter Ong 15 and Zygmund Baumann 16 wrote enlightening pages – each from a different

12 Cf. Aristotle, Rhetoric, Book 1, 1.2.8–13 (1356b–1357a); Bitzer, Lolyd. "Aristotle's Enthymeme Revisited." Quarterly Journal of Speech, 1959. p. 409-414; Lunsford, Andrea, Robert Connors, and Lisa Ede, Classical Rhetoric and Modern Discourse, Carbondale: SIUP, 1984.

13 Cf. L. Lombardi, Saggio sul diritto giurisprudenziale, 1967, pp. XXXIII-615; Chaïm Perelman, Lucie Olbrechts-Tyteca, Traité de l’argumentation. La nouvelle rhétorique, Presses Universitaires de France, Paris 1958.

14 A. M. Hespanha, « Savants et rustiques. La violence douce de la raison juridique », in Ius Commune, 10, 1983, 1-48.

15 Walter Ong, Ramus, Method and the Decay of Dialogue: From the Art of Discourse to the Art of Reason, Cambridge: Harvard University Press, 1958.

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perspective - about the collapse of rhetoric and the advent of rationalism. The reduction of meaning which this event produced in law has already been the subject of reflection 17. Not only did feelings and emotions leave the jurists’ horizon – where they had belonged for centuries - but also (one-dimensional) Truth consumed (pluralistic, fuzzy, multi-leveled) narratives.

Under the impact of rationalism, the legitimacy of alternative models of action, ways of life, systems of belief, anatomies of soul, calculability of social strategies also collapsed. And last, but not least, a neat watershed was drawn between the normal and the abnormal in humankind. Peasants were this side of humanity, unlike mad people or children. They took part in the social contract; they assumed general duties to receive general rights; so they had to behave accordingly, namely in legal matters.

Communicative support and discursive strategies. Apparently, there has been a slight shift in my discourse. I began with the

opposition between orality and writing; nevertheless, in the last paragraphs I am dissertating on exclusiveness or plurality of reasoning and narratives. The use of concepts like “narration” and the implied evocation of ways of communicating is not enough to justify the passage from one underlying theme to another.

Has orality anything substantial to do with the plurality of narratives, typical of the pre-modern age? And, by way of contrast, has writing any essential link to the one-dimensionality of rational Truth, namely in legal thought?

It sounds as if not. For centuries – at least from the thirteenth to the seventeenth, even if we give up Roman Law - an argumentative conception of law has been promoted by a highly written culture. And the opposite could also be asserted.

Nevertheless, it is today a historiographical commonplace to relate both profiles. Apart from authoritative arguments – such as invoking the hyper-celebrated works of Marshall McLuhan 18, Jack Goody 19, Walter Ong 20, D. F.

16 Zygmund Baumann, Legislators and interpretors: On modernity, post-modernity and intellectuals, Polity Press, Cambridge, 1989

17 António Manuel Hespanha, “Código y complejidad”, em Atti del colóquio “Codici. Una riflessione di fine Millenio”, Univ. degli Studi di Firenze, Dipartimento di Teoria e Storia del Diritto, (26-28 ottobre 2000) (under printing); “Os juristas como couteiros”, Análise Social 161(2001), 1183-1209; Richard K. Sherwin, When law goes pop, Chicago, The University of Chicago Press, 2000.

18 Marshall McLuhan, The Gutenberg Galaxy, Toronto, University of Toronto Press, 1962. 19 Jack Goody, The Domestication of the Savage Mind, Cambridge: Cambridge University

Press,1977. 20 Walter J. Ong, Ramus, Method and the Decay of Dialogue: From the Art of Discourse to

the Art of Reason, Cambridge: Harvard University Press, 1958; Interfaces of the Word: Studies in the Evolution of Consciousness and Culture, Cornell Univeristy Press, Ithaca & London, 1977; Orality and Literacy: The Technologizingof the Word, Routledge, 1982.

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McKenzie 21, Roger Chartier 22, Pierre Lévy 23 and others 24, when they relate supports of communication to intellectual galaxies - a fine analysis of legal discourse can identify (in core zones of its exposing, arguing, proofing or decisionmaking processes) an array of intellectual devices which are characteristics of dialogic reasoning or orality (quaestio, topica, common opinion, iudicium) 25. Although post-Roman legal knowledge (like Christian legal culture) was born from written texts, it grew in a scholarly environment on the basis of oral transmission and was fuelled by academic and forensic dispute practices. It is, therefore, closely bound to reading / writing / correcting / rewriting procedures, such as the lectio, the glosa, the adnotatio, and the castigatio. The very names of legal literary genres suggest such an oral origin - lecturae, dissentiones, disputationes, questiones.

Even if we do not adhere to the newest wave of the history of books – that which relates page layout to content 26 – a similarity could be found between the graphical display of a canonical legal text surrounded by identified and authorized glosae with an orator in the agora, encircled by personalized contenders, each one opposing arguments from himself. And this was, actually, the original scenic environment of these texts, often harshly discussed before an enthusiastic audience of scholars and students.

On the contrary, the one-dimensionality of legal narrative is tightly associated with written authoritative texts, as long as they allow the prosecution of group strategies oriented toward self-legitimation as authoritative lecturers, interpreters or scribes 27. From then onwards, inkwells appear in the coats of arms of notaries and lawyers (as we can see in several thirteenth-century tombs of

21 D. F. McKenzie, Bibliography and the sociology of texts (namely, in this context, “The

sociology of a text: oral culture, literacy, and print in Early New Zealand”, Cambridge, Cambridge U.P., 1999; Making meaning. “Printers of the mind” and other essays, ed. By Peter D. McDonald & Michael F. Suarez, S.J., Amherst, Univ. of Mass. Press., 2002.

22 Roger Chartier, Culture écrite et société. L'ordre des livres (14e - 18e siècle), Paris, Albin Michel, 1996; Pratiques de la lecture, Paris, Payot, 1993 ; Alfred Messerli und Roger Chartier (ed.), Lesen und Schreiben in Europa 1500–1900. Vergleichende Perspektiven – Perspectives comparées – Prospettive comparate, Basel, Schwabe & Co, 2000.

23 Pierre Lévy, La machine univers. Création, cognition et culture informatique, Ed. La découverte, Paris, 1987 (= "Point-Science" Seuil, Paris,1992) ; L'intelligence collective, (Pour une anthropologie du cyberspace), Ed. la découverte, 1997, Qu'est-ce que le virtuel ?, Ed. La Découverte, 1995.

24 Cf. António Castillo Gomes (ed.), Historia de la cultura escrita. Del proximo Oriente a la sociedad informatizada (namely, Pedro Cardim, “La presencia de la escritura (siglos XVI-XVIII)”, 271-316), Gijón, Trea, 2002.

25 Such marks of orality appear as submerged by marks of a written culture, whose political

investment in writing and in the promotion of the excellence of the written word was evident. 26 Such as McKenzie’s “material bibliography”(quoted above). 27 Cf. Pierre Legendre, L'empire de la vérité : introduction aux espaces dogmatiques

industriels. Paris, Fayard, 1983 ; Les enfants du texte, Fayard, 1992 ; Sur la question dogmatique en Occident, Fayard, 1999.

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Bolognese jurists and registrars), as swords appear in knights’ shields and mausoleums.

Medieval and Early Modern learned law has its roots in a literary tradition. Not only because it arises from canonical written books (the Corpora iuris [civilis and canonici]) or even because every development of official legal knowledge is embodied in written pages (namely, of statute law). Western law depends on writing not only because of this relation to a material support of transmission, but also because of the fact that the written form enjoys a particular kind of legal authority. Written texts (scriptura) are to be taken into account more so than spoken words. Words, like women, are seducing but fragile and moveable. Just as seduction disturbs reason, mobility and fragility damage the certainty that law is supposed to grant. Quite the opposite, writings promote serene analysis and remain forever. In a saying: verba volant, scripta manent. Therefore: writings are the best proof (regina probarum); denegrating writings (libella famosa) are more harmful than bad words and, consequently, had to be more harshly punished; bound writings or books (libri tabelionum, libri mercatorum, libri rationum, libellus iudicialis) form a world a se, whose existence is independent and more relevant than natural existence - “what is not in the books is not in the world” (quod non est in libris non est in mundo). And, last but not least, in law the correct reasoning (recta ratio) is equivalent to written reasoning (ratio scripta). The canonical legal texts (Corpora iuris) were not only (instrumental) repositories of a written reason (ratio scripta) , but also near-sacred objects whose physical or intellectual features were to be worshiped. Thus, the most famous copies were reverenced like holy relics. Also, physical features such as page layout or the color of the binding each had proper rules.

In these learned circles, to master the law is, then, to read (and write) books. The vicinity between grasping the law from a book or from the nature of things is unproblematic. To explain (to “open”, explicare) a legal text is a form of hermeneutics closely related to the act of uncovering the secrets of right and wrong hidden in nature. Behind the letter (cortex scripturarum) is the Spirit, as behind the things is the Word (logos) or Order of God. Reading, like empirical observation, is a (demanding) act of unveiling the truth.

However, this very over-investment in sacred texts, the very multiplication of books, each interpreting differently the same canonical sources, became an agent of entropy which caused a disturbance of Truth. Legal books have grown into the huge forest of entire libraries, impossible to master in a man’s life. Legal art had then to put in action a wide set of intellectual and textual devices to overcome the disproportion between what was to be read and what could actually be read. Paradoxically, this collapse of communication actually promoted the prestige of books. The secrecy they carried reinforced the magic character they always had. Even if it appeared to be easy in itself, a book was nothing less than a piece of a gigantic and synergetic body of written texts, an atom within an unlimited world of (hidden) cross-references. It was too great to be grasped by a lay reader, just as the word of God was too complex to be understood by a lay Christian.

The reader was to be guided: by techniques of reading and reasoning, and by textual experts.

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On the one hand, written texts became atomic arguments (like sayings, dicta, brocarda). Ideally, a lawyer tended to read every book, not as a whole piece of reasoning, but as a collection of loose argumentative links. Legal certainty arose from the collection and confrontation of opinions, reducing finally the written material to elements of dialogue, ruled by the ancient art of oral rhetoric. The argumentum ab auctoritate become, in this overall dialogic world, only one more of a large array of other dialogic devices. In a way, orality took over again, on the debris of a chaotic written world.

Modernity brought books again to the forefront of legal communication. On the one hand books became the voices of a newly unified power. The universalism of codes – bringing together the previous, already written manifestations of the will of power (leges) – expressed the universalistic legal pretensions of the new all-embracing States. However, at the same time, codes adopted a new trend in the understanding of books. Actually, the ontological link between text and truth was lost. The multiplication of written materials turned books into trivial objects and stressed their merely instrumental importance in the transmission of legal knowledge. Eventually, by the end of the modern ages, the most important feature of books turned out to be efficiency, not authority. They were compact, readable, user-friendly (often pocket-sized), and selective (digest). Like mathematics or physics, books have to embody a rational, ordering structure. Their organization should guide the reader, sorting out, organizing, and giving coherence to the content. These also became the qualities of a good legal book, qualities that are stressed even in the titles (liber utilissimus, liber in quo facile explanatur¸ compendium, tractatio methodice digesta)28.

Even codes – the invisible sword with which modern nation-states were built – gained this double legitimacy. They expressed at once the reason of power and the power of reason. It seemed the end of the slippery and deceptive loquacity of orality. And in a way, it was. In any case, the twilight of oral legal discourse was neither universal nor permanent.

28 Actually, these intend to functionalize books, to guide the reader in the jungle of written texts (lector in sylva), were also functional to the development of rationalist devices (as Ong pointed out in his book on Pierre de la Ramée), which could cope with the encyclopaedic vertigo: the building of all-comprehensive books (theatra, collectiones, opera omnia, bibliothecae iuridicae optimae); ordering by intellectual techniques (systema, methodus); the selection and digestion od the whole archive by literary means (opiniones communes, loca communia, syntagma and paratitla, vocabularia, dictionaria, promptuaria, repertoria); the outlining and ordering by typographical devices (rubricae, outlined capital letter); the multiplication of cross references (index, tabulae, concordantiae); the display of ordering images and schemes (arbora). Cf., for these themes, F. Alessio, La memoria del sapere. Forme di conservazione e strutture organizzative dall’antichità a oggi, Roma Bari, Laterza, 1988; C. Bozzolo, D. Coq, D. Muzerelle, E. Ornato, "Noir et blanc; premiers résulttas d'une enquête sur la mise en page dans le livre médiéval", Atti del convegno internazionale "Il libro e il testo", Urbino, 20-23 settembre 1982, Urbino, 1985, 195-221. Roger Chartier (dir.), Les usages de l'imprimé (XV-XIXe. siècle), Paris, Fayard, 1987 ; Peter Classen, Recht und Schrift im Mittelalter, Sigmaringen, 1977; Dominique Coq et Ezio Ornato, "La production et le marché des incunables. Le cas des livres juridiques", P. Aquillon et Henri-Jean Martin (dir.), Le livre dans l'Europe de la Renaissance. Actes du XXVIIIe. Colloque International d'Études Humanistes de Tours, Paris, Promodis, 1988, 305 ; Albert Labarre, "Les incunables: la présentation du livre", inHistoire de l'édition française. I. Le livre conquérant. Du Moyen Âge au milieu du XVIIe. siècle, Paris, Promodis, 1982 ; Roger Laufer, "Les espaces du livre", Idem. II. Le livre triomphant, 1660-1830, 134-139; D. H. Green, "Orality and reading. The state of the research in medieval studies", Speculum. A journal of medieval studies, 65(1990)267-280.

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Orality and writing in contemporary law.

This is what history tells us about the conflict between orality and writing in legal culture. Today, these stories remain - as we have seen from our own storytelling - in the craving peripheries of our global village. Can we, who are in the center, leave them to the anthropologists and post-colonial judges? Is there still orality today in the center of our legal culture? Are there alternative narratives that official legal narrative should cope with ?

In a recent book devoted to orality in the nineteenth-century political universe, Carlos Petit 29 discovered the central role played by orality in the conformation of politics during European parliamentarism. The reading of Guizot, B. Constant or Stuart Mill doesn’t but confirm the theoretical centrality of political discussion, of public opinion, of dialogue and polemics, even if the themes often apparently relate to printed messages (la liberté de presse). Actually, in the nineteenth century the press became the new agora of politically integrated people, that educated bourgeoisie to which the political system was exclusively oriented. Therefore, the granting of freedom of the press aimed - as it was clearly put by the contemporary publicists – to grasp the fragments of truth which were dispersed randomly in public opinion, fragments which only the old dialogic techniques of confrontation (and not the linear reasoning of a monotonic discourse) could distill.

One could, of course, easily shift Petit’s insight to the forensic world, discovering the constitutive role of the oral plaidoyers in court, as they appeared emphatically in Daumier’s graphical work.

Yet more decisive for discussing the contemporary role of oral communication in legal matters is the reevaluation of the role of writing in the shaping of official law, as treated in a recent book by Marta Lorente 30. She starts from a subject that both legal history and legal dogma trivialized – the publication of statutes (leyes) in contemporary theory and practice of official law. Statutes, made by parliaments, were the very voice of the State and, therefore, the sole voice of political power itself. Notwithstanding everything that legal and political theory had solemnly declared regarding the soprano character of our Master’s voice, Marta Lorente discovered astonishing facts about the almost whispering weakness of the proclamation of statutes. They were ill-regulated, often dependent upon oral promulgation, subject to the economic fortune of official editors and to the hazardous success of mailing services. Even before being exposed to the subversive “exegesis” of lawyers, even before being abrogated or distorted by practical appropriations, statute law was already weakened by the

29 Carlos Petit, Discurso sobre el discurso. Oralidad y escritura en la cultura jurídica de la españa liberal. Lección inaugural. Curso académico, 2000-2001, Huelva, Universidade de Huelva, 2000.

30 Marta Lorente Sariñena, La voz del Estado. La publicación de las normas (1810-1889), Madrid, BOE/CEC, 2001.

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fact that writing was not yet the proper means by which to convey a message to a universal (and almost universally illiterate) audience 31.

Narratives in the post-Gutenberg galaxy. Today’s communicative world is not the traditional world of orality.

However, neither is it the modern world of written narrative. In our days, narratives are made mostly of images, as Marshall McLuhan

stressed almost half a century ago 32. With images, namely images in motion (like in movies or in TV), narratives recovered an empathic character that oral communication once had and which was almost lost in written communication. Images can more easily seduce than words, can more strongly bring spirit to enthusiastic adhesion, to love or to abhorrence. This, however, with the massive impact that oral communication only recently – with the radio - partially acquired. Nowadays, movies – and, namely, new techniques and aesthetics of moviemaking – produce new frenetically kinetic images, which, furthermore, can be repeated and exported without limits of time or of space. Their potential for framing minds is far stronger than that of printing, even of massive printing such as the press 33.

Actually, the kinesis of images has developed through new styles of narration. No more the lengthy and one-sided narration we were acquainted with, from classical novelistic and naturalistic painting to the scripts of the oldies (in movies) –- long and reasoned literary or movie sequences, a sequential time-line, a neat and well-built causal explanation. As Richard Sherwin puts it “The proliferation of visual images […] in contemporary society has been accompanied by a significant cognitive shift. The linear thinking style (or interpretive fluency) characteristic of print-based culture is now in competition with what may be called an “associative” cognitive style, a style that is characteristic of our current image-saturated culture. As Richard Lanham writes, today we are more inclined to drift along the surface of electronic screens. We look at the signs and symbols that flow by, rather than through printed words for whatever meanings they may offer […]. Or, as some postmodernists are fond of saying, if meanings are there, they are all on the surface: appearing and disappearing, being created and recreated by image-makers and viewers alike as we gain increasing control over the flow of images we see and the order in which we see them” 34. The trend is familiar to us. Every night, we build it zapping in TV. In the movies, it is Oliver Stone’s “hyperkinetic and fragmentary style in films like JFK, The Doors, and Natural Born Killers. Here

31 Even today, the inadequacy of writing (especially technical legal writing) to a broad range of communication is

revealed by the fact that, according to a survey made of a representative sample of Lisbon inhabitants, only 26 % of the respondents declared to have received high quality information from the written media (cf. Hespanha,”Inquérito aos sentimentos de justice num meio urbano” (to be published in Análise social).

32 Marshall McLuhan, The Gutenberg Galaxy… (quoted above), 1962. 33 Although we shall stress the similarities between the ephemerous world of press

and the fluidity of spoken words. Cf.Esteban Conde Naranjo, El Argos de la Monarquía. La polícia del libro en la España ilustrada (150-1834), PhD. Diss., Facultad de Derecho, Universidad de Huelva, 2002, 562 ss…

34 Richard K. Sherwin, When law goes pop, Chicago, The University of Chicago Press, 2000, 6.

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the art of the rapid cut displaces the deep-focus composition favored by an earlier generation of filmmakers, such as John Ford, Howard Hawks, and Otto Preminger” 35. Either the multitude of TV channels available at the speed of pressing a remote control sensor or the frenetic style of image-cutting create a new style of narrative, characterized by

� a fragmentary perception of outer reality; � a need of instantaneous (non reflexive, “shallow”) “comprehension” (mental processing) of perceived images;

� an associative “thinking”, corresponding to the multilateral, parallel nature of perceived data, like that used by cubism to represent objects, but intensified by the fact that “new kinetic cubism” works not only with static plans but also with images in motion and time sequences.

Furthermore, the popular impact of these new narratives – moreover dealing with teasing exceptional cases (notorious crimes, singular personalities, exotic ambiances) – mix up conventional images of the world, creating “enhanced awareness of contingency, chance, uncertainty, and multiplicity (of truth and reason and of self and social reality)” (Sherwin, 2000, 235), repressing the dichotomous thinking which characterized the Enlightenment (and law).

The entangled nature of this new constellation of world visions could re-enhance the impoverished uni-dimensional consciousness, which was typical of modernity. In this sense, we could surely talk of a “fall of the Empire” – as an official narrative made of Law and Truth36 – and of a return to a new wave of dialogic imagination.

However, dialogue would suppose that: � All sets of images present in our public sphere had the same weight, ie., the same capacity to frame consciousness and common sense;

� Common people could develop and take advantage of intellectual tools to critically assess received stimuli (arguments, scripts, reasons).

In this case – but only in this case – people would participate in a balanced dialogue – that panglossic ideal of Habermas37 - between classical and emerging narratives, being subject (more than merely target) of communication.

However, this is not the case. An equally biased Empire is being built, that of a fabricated common sense. No more the (already oppressive) spontaneous common sense, against which Stuart Mill rebelled in his essay On Liberty; but an artificial one, framed by intentional purposes and elaborated techniques; diffused

35 Id, ibid., 19. 36 Cf. Arthur Austin, The Empire Strikes Back. Outsiders and the struggle over legal

education, New York, NYU Press, 1998. 37 I’m referring to J. Habermas. Theorie des Kommunikativen Handelns, Frankfurt,

1981; Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt/Main, Suhrkamp, 1992; Die Einbeziehung des Anderen. Studien zur politischen Theorie, Frankfurt/Main, Suhrkamp, 1996; critical resumé, Sherwin, 2000, 235 s..

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by the most powerful inculcating devices of human history; and self-fuelled by the pop-taste it is itself creating38.

Surely, the kinetic dynamics of the contemporary media’s discourse doesn’t instill unanimity, fixed standards, harmonic feelings, or detached views. In contrast, it (at least apparently) multiplies perspectives and scripts, blurs norms, antagonizes emotions, and carries passions. In this sense, the new Empire tends to be not a monotoned or monotonous one, but one which could be described as pluralistic, relativistic, and multi-value oriented. Nevertheless, because critical reflection is not promoted, plurality results in confusion, anguish, indifference, and pietism towards existing patterns. Values liquefy; communities lose moral contents; individuals become more and more isolated and ethically unarmed 39.

Therefore, new features can be added to the previous topics of contemporary communication:

� pluralism of narratives; � dismissal of fixed standards; � extreme imbalance of performative efficiency of the different discourses; � media soft dictatorship; � possibility of intentional manipulation of common sense; � shallowness of reading; � moral indifference. A brief comparison both with the old world of traditional orality and the

modern world of writing-oriented communication allows us to distinguish more clearly the typical features of today’s communicative culture.

Traditional Oral Culture

Modern Written Culture

Contemporary Media Culture

Uni-dimensionality of meaning * State imposed standards * [*] Multiplicity of values * [*] * Communitarian axiologic standards * [*]

The table renders the diagnosis easier. Traditional culture was based on an

immanent order, which prevented or submerged fundamental (or paradigmatic)

38 Cf. the sophistic reasoning according to which to cope with listeners’ preferences is to respect the audiences, as if audiences weren’t previously framed by the media themselves..

39 For a brilliant [?] analysis of these topics, Z. Bauman, Zygmunt Bauman, Community: Seeking Safety in an Insecure World¸ Cambridge, Polity Press, 2001; ou Zygmunt Bauman, Liquid modernity, Cambridge, Polity Press, 2001; ou Zygmunt Bauman, The Individualized Society¸Cambridge, Polity Press, 2001.

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dissent. Sub-paradigmatic differences were ruled by dialogical mechanisms oriented to the acquisition of communitarian consensus, under the guidance of paramount communitarian axiological standards. Here, the core problem was the lack of innovation.

Modern culture experienced a tension between an immanent sense of justice corresponding to a spontaneous sense of fairness) and external, State-enforced social standards. State was seen as the rational personification of society and, therefore, homogeneity of political society generated by the State promoted an idem sentire amidst the political elite, which was the moral ballast of legislation 40. The coexistence and balance of these two cultural spheres became problematic. The apparent prevalence of official culture frequently hid the underground or peripherical pervasiveness of popular culture.

Contemporary culture, on the contrary, is marked by multiculturalism, not only because of the shrinking of space and proximity of cultures, but also because of the superabundance of sense carried by the media. As the dissolution of communitarian values makes impossible a dialogical evaluation of values, ethical reflection is replaced by axiologic indifference, by value liquefaction and value consumption without assessment 41. Although the State goes on creating norms, they lack the axiologic rationale which supports them against the modern cultural pluralism (or indifference).

Old roles of a new law. How shall legal narrative deal with this world of liquefied values? Amidst this constellation of narratives, law is confronted with two kinds of

problems. One is of substance; the other of procedure. The problem of substance is the issue of establishing standards, which is the

supposed task of law. Once (Legal) Truth is discredited – even if we concede that it ought not to be

- a canonical narrative (values, to put it in a more conventional fashion) could only be established by dialogue between different legal sensibilities, by finding common topics on which a transactional legal standard could be established. Some tend to give an ontological nature to these shared standards (the hermeneutical way). Others state their merely conventional validity (the republican via). However, both wings share the same assumption: that dialogue shall be a fair one, where parties are equally positioned and where the rules of conversation are unbiased. There is no historical evidence that this edenic kind of dialogue has ever been established.

40 The narrowness of political (and legal) society was compensated by the existence of mechanisms of political and legal mediation, such as those described in the first section of this article, which allowed a quite lose integration of all inhabitants in a common concept of citizenship.

41 This erosion of public values and the unlimited affirmation of individual rights is also the diagnosis of leading representatives of communitarian thought; cf. Amitai Etzioni, The spirit of community. Rights, responsibility and the communitarian agenda, New York, Fontana Press, 1995; Ann Glendon, Rights talk. The impoverishment of political discourse, New York, The Free Press, 1991.

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On the contrary, human dialogue has always been distorted by unbalanced positions and by biased rules.

The current situation of civic communication is also far from that ideal situation of a neutral forum. Mass media are highly culturally and socially selective. Not only by several forms of culture-centrism, but also by an extremely unequal access to the opportunity for opinion-making. Being much more inaccessible than plain, ordinary discourse, the media also amplify the inequalities of publicly presenting reasons, and the lifestyles of different cultural or social groups.

This situation prevents us from taking for granted any apparent axiologic consensus (idem sentire); from resting on any “objective” assessment of social feelings based on media democracy (“audiences”). Quite the opposite, according to R. Sherwin, what is needed is a “tragic wisdom”: “Tragic wisdom expressly takes into account the contingencies, uncertainties, and limitations of human understanding and the imbalances that exist in particular linguistic interactions. In this way it invites us to take cognizance of the competing claims or warrants for belief that arise within a given conflict situation, including differences in discourse strategies, knowledge, and institutional or community-based power. In sum, tragic awareness acknowledges the diverse ways in which one may make sense of actions and events and the consequences of constructing truth, self, and reason in one way as opposed to another” (Sherwin, 2000, 237). Therefore, to cultivate a tragic wisdom is to fully understand the embedded meaning of narratives, to scrutinize life behind appearance, and to avoid taking for granted that life is appearance (or appearance is life).

Apparently, this is a convocation of jurists to the role they have performed for centuries, that of interpreters 42. But now, there is the additional difficulty of being deeply aware that converting appearance to life, that rebuilding depth from shallow images, that knitting continuity from discrete images all imply an active participation of the observer (in this case, of the law / lawyer). So that the expectations of an ontologically successful hermeneutics of others’ narratives are extremely low. Anyway, this effort of using trained skills and controlled techniques to search for a deeper meaning promotes, by itself, a reflexive endeavor which can, at the very least, deepen and render more complex a plain common-sense assumption of others’ points of view.

This is precisely the point where questions of substance are converted into procedural ones (or, in contrast, where procedural questions turn into substantial ones). Trained skills and specialized techniques are nothing more than explicit procedures, established protocols, and a fixed set of rules, used to a controlled observation and weighting of narratives. These procedures are good, but not because they are natural 43 nor because they work 44; rather, they are good

42 Cf. Z. Baumann, Legislators and interpreters. On Modernity, Post-Modernity and Intellectuals, Cambridge, Polity Press, 1987.

43 As natural law postulates. 44 As a (biased) critical interpretation of Luhmann tends to assume.

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because they are explicitly formulated and (tragically) accepted as a convention among a community of people 45.

Back to legal dogmatic. An honest lawyer would ask, “How does all this fuzzy, vague and futile

lucubration concern our concrete and practical work?” Rhetorically, I would answer that there is nothing more capable of grasping concrete and real life than this kind of fuzzy, vague and futile lucubration, whatever feelings lawyers might have on the subject (a proposition which - I have to admit - may once again be a fuzzy, vague and futile lucubration).

However, I will try to go deeper into ordinary legal dogmatic. Richard K. Sherwin’s work – with which I am now contrasting my own insights

– addresses the same question, although in a common law system. Entangled narratives are presented in court (real courts or docudrama courts). Electing factual narratives is the task of the jury. To combine the chosen script with the legal narrative(s) 46 is the task of the court. In any case, there is a common issue: to fix a conflict of versions, either on facts or on standards. The typical legal issue is, however, the second one (insofar as the distinction between facts and norms can be methodologically established). Therefore, the legal question would be something like: “How can we accommodate different and conflicting legal narratives ?”.

At this point, Sherwin seems quite optimistic, and deserves an extended quotation: “I would like to suggest that this image of productive disequilibrium comports well with an affirmative postmodern understanding of our constitutional system of law. Here, then, is a compelling “frame-story” for the profusion of legal narratives that constitute and reconstitute law’s domain. For what is the Constitution if not the legitimating source of multiple and conflicting forms of legal discourse, knowledge, and power? In this view, law is, to borrow Kauffman’s term, a complex “ecosystem” made up of “a tangled bank of interwoven roles” or, as I prefer to call them, interwoven communicative practices and competencies. It is precisely the proximity of disorder - deriving from constant contestation among conflicting discourse communities as well as from the various irrational forces that surround and suffuse them - that compels new forms of legal self-organization (or “emergent lawfulness”) […] This is how law adapts to the contingencies and vicissitudes of shifting social, cultural, and technological (among other) de-velopments” (Sherwin, 2000, 238). The author goes on to tell how the constitutional balance of powers allows for the interplay of different narratives: “(1) the common sense of public opinion (doxa) based on the knowledge acquired in the course of our ordinary life experience (onscreen and off), or (2) the

45 As some kind of “republicanism gnoseology” would put it. 46 To speak of legal norms as “narrative” is already an often unbearable

provocation. Actually, the use of the expression “legal narratives” tends to evoke the literary (fictional) character of law – law as a particular (set of) version(s) / construction(s) / narrative(s) of society.

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prudence of judicial interpretation based on specialized legal knowledge and skills of interpretation and persuasion regarding the applicability and meaning of particular legal rules, policies, and fundamental legal principles, or (3) the informed policy-making competencies of the legislative branch”, concluding that “Out of the clash of these competing claims to knowledge, reason, and truth, the shifting mosaic of law’s meanings takes shape” (ibid., 239). The danger arises when this equilibrium is broken. When, for example, “courts sacrifice prudence for partisan politics, or when legislators sacrifice fundamental democratic principles or benefit-maximizing policy goals for the sake of financial gain or power for its own sake, or when ordinary citizens serving as jurors sacrifice the common sense of lived experience for the skewed information and artificially enhanced passions generated by commercial advertising, public relations, and hyperreal media events” (ibid., 240). Therefore, according to Sherwin, in spite of this more and more present risk, jurors, courts and legislators can decide on a legal solution out of the polyphony of disparate narratives.

Plurality of narratives in European Continental law. Continental law is deemed to be far less court-centered 47. And continental

courts are not, for the most, jury courts. So that, in Europe, checks and balances that operate in the American common law system have to be replaced by doctrinal openness to disparate social narratives, namely subaltern narratives, as the Italian doctrinal movement of “alternative use of law” (uso alternativo del diritto) proposed some years ago.

A story, again. Lisbon, 2002. A more or less spontaneous gathering of people demonstrate against the imminent destruction of a public garden by a new street. Some people were there on purpose; others were just passing by and joined the protest; others were forced to be there by the traffic jam created by the event, adding to the crowd and the confusion. Some claimed their interests were being offended by the traffic delay. Although efforts were being made by demonstrators to use a crosswalk to avoid police fines, the police did identify participants and, subsequently, accused them of violation of traffic regulations, namely by illegally blockading a public street. In this case, conflicting narratives can be built.

One speaks about freedom of demonstration, widely guaranteed by the Portuguese Constitution, even against limitations introduced by ordinary statute law. In the background, framing images of prior assaults on liberty during Salazar’s dictatorship. Another narrative tells the environmental story. As backdrop (along with the general concern for the forests, flowers and trees) are older people and children who are supposed to use the parks, and recent episodes in sacrificing the beauty and quality of urban life to economic building interests. Yet another narrative speaks about freedom of circulation, evoking the extreme cases of sequestration, political exile or obstacles to immigration. More plainly, there is the narrative that tells of people who want to work and cannot reach their jobsites or,

47 This is a risky assumption. There is not enough empirical evidence on the comparative mouldering effects of respectively statute-law and court-jurisprudence on legal common sense. Nor does such evidence exist regarding the role actually played by statute law or court precedents on conflict-accommodating process.

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more dramatically, about people whose jobs could be jeopardized by arriving late. In a world where to be is to appear on TV, another story in this scenario is the need for TV news coverage, which is only possible by causing a strong enough social disturbance. In the background, frames of the moving effect of Watergate and simlar. Police tell the impersonal and monotonous story of law enforcement, while demonstrators narrate their legitimate use of a pedestrian crossing. And the scene could go on, listing entangled, contradictory, multi-leveled stories, whose emotional (oral) dimension is scarcely reducible to a conventional legal text.

With facts taken for granted, the open issue is a typically legal one. To describe according to standards and to harmonize conflicting rules. And in continental law, to harmonize is typically to build a norms’ hierarchy, once and for all; that is, norms on constitutional rights (the constitutional part [Verfassung] of the Constitution [Konstitution]), public duties (“governmental” statutes), and civil interests (private law). Demonstration right would be at the top, since circulation rights would be difficult to apply in the case of a micro traffic jam that could be have been resolved by using parallel streets. Then, there is the right to a harmonious environment, also explicitly protected by the Constitution (although – the constitutionalists say - in a second level of dignity 48). The government’s right to maintain a traffic flow would come next. However, a neat hierarchy collapses here, as (urban) well-being – the very value demonstrators were upholding – depends also upon fluidity of circulation. At the bottom, private costs: loss of time and jobs jeopardized. Depending upon the circumstances, some of these interests can acquire, however, a constitutional dimension, namely if one takes seriously the so-called “external effects” (Drittwirkung) 49 of the Constitution: to be put at risk of being fired from one’s job in a moment of economic recession is to have one’s right to work jeopardized. Hence, a new disturbance of the hierarchical model. Nothing has been said about the right to appear on TV screens in prime time. Formally, this is not a justifiable means of defending rights. The courts, administrative instances of appeal, and even ombudsmen are out there at one’s disposal. The fact that they are lengthy, inefficient, and expensive, that they filter life, or that they rarely arrive at any useful outcome, is legally irrelevant. Quite the contrary, TV has developed a strenuous and often quite unbalanced “rights talk” which forces official institutions to move under the pressure of public opinion.

Amidst such a messy dialogue, with voices of different tones and strength, the task of evaluating the proper balance of narratives would seem to require the vibrating virtuosity of a seasoned music critic. A virtuosity, that is, functioning almost without the guidelines of a musical score, as in the improvisational jam sessions of jazz.

48 A “social right” (such as the right to housing, to healthcare, to education, to work), and not a “fundamental right”; as such, a distinction which seems to have little to do with a vital (truly experienced) experience of life.

49 “External” is, in this expression, an ideologically flavoured word. It assumes that only the State can impinge on fundamental rights and that, therefore, their defence operates directly against the State. Protection of individuals against society is a side effect, a non-intentional effect, an almost ultra vires constitutional enforcement, as society is a harmless, bond-free, individual environment.

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This is what is being called, by some prospective insights in European jurisprudence, the “softening” of law 50, but often not noting that “soft law” was precisely what Europe had before legal codification. Anyway, the mere return to those golden times of dialogic legal imagination, ultimately ruled by prudent criteria 51, would ignore the loss of basic axiologic unanimity (idem sentire), the vital condition for successful (consensus-winning) legal prudence. In a deeply pluralistic society, such as ours, the humanarum atque divinarum rerum notitia, which formed the firm (although totalitarian) rock on which iurisprudentia - as justi atque injusti scientia (cf. D., 1,1,12,2) - was based, doesn’t exist anymore. All we have is the moving sand of a volatile and shallow public opinion, more disturbing than guiding, and creating mirroring certainties on problematic values. Unless prudentes have the pretension of becoming people’s demiurges, as they often tend to do, reading on people’s lips their own understanding of fairness, what needs to be done is rather simply to fix the rules of a fair dialogue. This means deepening the heuristics of contrary positions, enlightening opposite points of view, fixing the object of dispute (litis contestare) and the rules of evidence, granting that competing rights be heard equally, and testing provisional consensual arrangements. In short, leading a dialogue without any pre-fixed doxa.

This essay, an attempt at making sense out of noise, breaks with a great deal of the current acquis of legal art. Actually, jurisprudence, after being based solely on fixed norms, tries to shift to more indeterminate principles. In both cases, however, saving a decisive normative role for learned law, as far as jurists and judges, after legislators, were deemed to be the “guards of the constitution”. What is being proposed more here is that jurists downgrade their role to that of “game keepers” 52 (or “midwives”), thereby helping to give birth to rationales of justice that are already implicit in the messy axiologic talk of our days.

50 Cf. Gustavo Zagrebelski, Il diritto mite. Legge, diritti, giustizia, Einaudi, 1996; also, Pietro Costa e Danilo Zolo (ed.), Lo Stato di diritto. Storia, teoria, critica, Milano, Feltrinelli, 2002 (namely the texts of Luigi Ferrajoli e Pier Paolo Portinaro; and Maria Rosaria Ferrarese, Il diriitto al presente. Globalizzazione e tempo delle istituzioni, Bologna, Il Mulino, 2002 (namely, chap. II, “Espreziono giuridiche al presente”.

51 As it is implicitly proposed by, v.g., Paolo Grossi (cf. Scienza giuridica italiana. Un profilo storico. 1900-1950, Milano, Giuffrè, 2000).

52 Cf. Z. Baumann, Legislators and interpreters. On modernity, post-modernity and intelectuals, Cambridge, Polity Press. 1987. Bauman (Emeritus Professor, Univ.of Leeds) is considered by Anthony Giddens as “the theorist of post-modernity”. His most recent book is a brilliant search for a post modern morality; application to law, A. M. Hespanha, “Os juristas como couteiros”, Análise Social 161 (2001), 1183-1209.